A Primer on Interlocutory Injunctions

Paper delivered at the Civil Law Seminar 2016, Canadian National Judicial Institute, (Vancouver, BC, 18-20 May, 2016)

48 Pages Posted: 14 Jan 2019

See all articles by Jeff Berryman

Jeff Berryman

University of Windsor - Faculty of Law

Date Written: May 18, 2016

Abstract

In an ideal world justice would be dispensed instantaneously and the incursion of any form of interlocutory loss, irreparable of not, would be avoided. In an imperfect world we need to learn to live with law’s complexity, human frailty, evidential uncertainty, limited resources, and the inevitable passage of time that passes when these are engaged. Law, like any other human construct that takes thought to digital page, simply takes time. Just as an infinite number of monkeys placed before typewriters takes time to recreate the works of Shakespeare, time also passes between an applicant’s assertion of a wrong, and establishing the legal framework upon which those claimed rights are to be determined. Uncertainty and delay can arise in the need to establish a claimed right, as in where the right is novel or only in nascent form. Delay can emerge from the gathering of evidence particularly where the action is going to be determined largely on an affidavit record. Similarly, because the evidence is written and not subject to cross examination, it is open to divergent interpretations. Even if the best counsel can over come the aforementioned difficulties, they face resource constraints in terms of judicial and court time. Unlike health care where there are now standards for wait times there are no similar standards for court hearings.

Between the ideal and the real, interlocutory relief exists as a form of paradoxical justice. It is not perfect justice because it is decided under less than ideal trial circumstances, yet it purports to do justice by minimizing a loss for which the applicant will never be able to recover. While an applicant has a right to a civil judgment following proof of a legal cause of action and meeting the requisite level of evidence, there is no equivalent right, outside one conferred by statute to jump the queue or to obtain an interlocutory injunction.

The real world is also a dynamic one in which a variety of contextual issues frame the need and desire for interlocutory relief. Even at inception of the American Cyanamid test, Hammond identified how the difference in dealing with affidavit evidence on both sides of the Atlantic, i.e. allowing for limited cross examination in Canada, would impact upon the potential credibility of the evidence and thus the veracity courts would give to it. Post 1975, transformations in civil procedure, particularly simplified proceeding, case management, and status reviews, have all increased the control exercised by courts to hasten litigation through the adjudicative process and indirectly lessen the need for interlocutory relief. Buttressed by these procedural changes, some courts are now more willing to deny or suspend granting interlocutory relief in return for an undertaking from the parties to expedite the trial process, or to keep records that will make it easier to quantify damages. The ebb and flow of interlocutory injunctions is greatly influenced by all these externalities.

Keywords: Interlocutory Injunctions, Canadian Common Law, Irreparable Harm, Asset Preservation Orders, Search Orders

Suggested Citation

Berryman, Jeffrey, A Primer on Interlocutory Injunctions (May 18, 2016). Paper delivered at the Civil Law Seminar 2016, Canadian National Judicial Institute, (Vancouver, BC, 18-20 May, 2016), Available at SSRN: https://ssrn.com/abstract=3309921 or http://dx.doi.org/10.2139/ssrn.3309921

Jeffrey Berryman (Contact Author)

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

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